Unofficial Opinion 96-5

February 19, 1996

To:

District Attorney Stone Mountain Judicial Circuit

Re:

Application of O.C.G.A. § 49-4A-9 to juveniles tried and sentenced as adults.

In your recent letter, you have asked four questions about the proper application of O.C.G.A. § 49-4A-9 to juveniles prosecuted as adults in superior courts. The specific factual context in which these issues arose is set forth below.

A juvenile was indicted by the Grand Jury on charges of Murder, Felony Murder, and Aggravated Assault. At trial, a mistrial was declared when the jury was unable to reach a verdict. Thereafter, the juvenile entered a plea of guilty to a charge of voluntary manslaughter and was given a split sentence of eight years, four to serve. At the time of conviction, the juvenile was fifteen years old. After the imposition of sentence, the juvenile was confined by the Department of Children and Youth Services at a Regional Youth Detention Center. With the approach of the juvenile's seventeenth birthday, you have posed four questions regarding the appropriate disposition of the case.

First, you inquired whether the provisions of O.C.G.A. § 49-4A-9(e) apply to all juveniles sentenced in superior court, or only to those designated by the court as youthful offenders under Sub-paragraph (a) of that Code Section. Official Code of Georgia Annotated § 49-4A-9(e) provides that it is applicable to "[a]ny child under 17 years of age who is sentenced in the superior court and committed to the [D]epartment [of Children and Youth Services]." Therefore, it is my opinion that the provisions of Sub-paragraph (e) apply

only to juveniles so sentenced, because the General Assembly has provided that youthful offenders are those so designated in Chapter 7 of Title 42; that Chapter applies only to males at least seventeen years of age at the time of conviction. O.C.G.A. § 42-7-2 (7). Those juveniles convicted of felonies punishable by death or life imprisonment must be sentenced into the custody of the Georgia Department of Corrections and are therefore not subject to the provisions of O.C.G.A. § 49-4A-9(e).

Secondly, you ask if the provisions of O.C.G.A. § 49-4A-9(e) would apply to juveniles convicted in superior court of capital felonies. In my opinion, this provision is not applicable. As noted above, juveniles convicted of felonies punishable by death or life imprisonment must be sentenced into the custody of the Georgia Department of Corrections. O.C.G.A. § 49-4A-9(a). Official Code of Georgia Annotated § 49-4A-9(e) applies only to children committed to the Department of Children and Youth Services (the Sub-paragraph refers to the "department;" O.C.G.A. § 49-4A-1(4) provides that in this Chapter, that term means the Department of Children and Youth Services). Because juveniles convicted of capital felonies cannot, by law, be committed to the Department of Children and Youth Services, they are not eligible for a sentence review under this Sub-paragraph.

In your third question, you ask whether a commitment under O.C.G.A. § 17-10-14 would constitute a commitment for the purposes of O.C.G.A. § 49-4A-9(e). Code Section 17-10-14 expressly provides that imposition of a sentence on a juvenile, with certain exceptions not relevant here, constitutes a commitment to the Department of Children and Youth Services. Therefore, it is my opinion that, for the purposes of O.C.G.A. § 49-4A-9(e), imposition of sentence under O.C.G.A. § 17-10-14 upon a juvenile convicted in the superior court of a non-capital felony constitutes a commitment to the Department of Children and Youth Services.

Finally, you have asked whether the provisions of O.C.G.A. § 17-10-1 (a) would deprive the court of jurisdiction to modify the sentence after the term of court or within 60 days of sentencing. However, that provision was repealed by the General Assembly in 1992 (1992 Ga. Laws 3221, § 1). Thus, those provisions would not have any effect on the court's jurisdiction in this regard.

In sum, it is my official opinion that the provisions of O.C.G.A. § 49-4A-9(e) apply to all juveniles convicted of a felony in superior court, except those convicted of felonies

for which the potential punishments include the death penalty or life imprisonment, and that all such juveniles are thereby entitled to a sentence review by the sentencing court to determine if the child should be placed on probation, have his sentence reduced, or be transferred to the Department of Corrections for the service of the remainder of his sentence.